On
August 30, 2011, the M/Y NAMOH struck a wooden piling while
backing into a berth provided by defendant Boston Waterboat
Marina, Inc. (“BWM”). This litigation ensued to
determine whether plaintiff Namoh, Ltd. should be held
comparatively at fault for the damages as a result of this
allision and to establish the damages, if any, for which BWM
is responsible. Following a non-jury trial, I make these
Findings of Fact and Conclusions of Law pursuant to
Fed.R.Civ.P. 52.

I.
FINDINGS OF FACT

A.
The M/Y NAMOH and Her Intended Voyage

The M/Y
NAMOH is a 125 foot luxury motor yacht owned by Namoh, Ltd.
The M/Y NAMOH is equipped with twin diesel engines and two
five-bladed propellers with diameters of 1300mm and a weight
of over five hundred pounds each. The M/Y NAMOH is also
equipped with a sonar system manufactured by Wesmar that has
a display monitor at the helm station on the far port side of
the vessel.

At the
time of the allision, the two members of Namoh, Ltd. were
Walter Homan and his father Frank Homan. Namoh is the
semordnilap of Homan. The Homan family used the M/Y NAMOH
both for personal pleasure and for commercial chartering. At
the end of August, 2011, Walter Homan was travelling aboard
the M/Y NAMOH with his family. On August 30, 2011, the M/Y
NAMOH travelled from Camden, Maine to Boston, Massachusetts
to meet Walter Homan's son and his girlfriend.

B.
The August 30, 2011 Docking

On the
evening of August 30, 2011, the M/Y NAMOH arrived in the Port
of Boston. The vessel's Master, Captain Gregory Russell,
contacted BWM seeking a dock berth. Captain Russell spoke
with Christopher Cannon, the manager of BWM and a licensed
captain himself, who directed Captain Russell to berth in
“D” dock, a slip in which the M/Y NAMOH had
previously berthed.

The M/Y
NAMOH arrived at BWM at approximately 6:00 PM and prepared to
berth in “D” dock. Captain Russell positioned the
M/Y NAMOH to back into “D” dock with her
starboard side to be tied to the berth. Captain Russell
positioned himself on the wing station on the M/Y NAMOH's
starboard side. From the wing station, the monitor for the
sonar would not be visible. Cannon, joined by his father
Larry Cannon, was present at “D” dock in order to
assist with the berthing process.

Approximately
half to two-thirds of the way into the berth, the M/Y NAMOH
experienced a sudden and violent shudder. The starboard
engine shut down and Captain Russell ordered the crew to
throw out lines in order to secure the vessel from drifting.
He then called the engineer in the engine room to determine
if the engine readings appeared normal. When the engineer
confirmed that they did, Captain Russell restarted the
starboard engine. Captain Russell reasonably believed either
that a line had become wrapped around the propeller, which
had caused the engine to shut down, or that whatever object
the vessel had struck had been cleared out by the initial
impact.

Following
the same procedure, the M/Y NAMOH again backed into the
berth. Cannon remained on “D” dock watching the
berthing and he did not instruct or warn Captain Russell not
to proceed. As the vessel backed in, she appeared to hit
something hard and the starboard engine again shut down. The
M/Y NAMOH was pulled into “D” dock using her
mooring lines and deck winches.

At
trial, Cannon testified that he believed the wing station was
a proper place for Captain Russell to be during a berthing
process. When asked whether he felt that Captain Russell had
done anything improper while backing in the vessel, Cannon
said no. When presented with his deposition and earlier
interrogatories, Cannon confirmed that at the time he gave
his deposition, he had also been of the view that Captain
Russell did not operate improperly during the berthing
process.[1]

BWM has
admitted that it was negligent for failing to provide the M/Y
NAMOH with a safe berth and admits that it breached its
implied warranty of workmanlike performance to Namoh, Ltd. I
find that Captain Russell did not operate the M/Y NAMOH
improperly during the berthing process and, more
specifically, that he did not act unreasonably when he backed
the M/Y NAMOH into the berth for a second time. I find that
any damage to the M/Y NAMOH while berthing at “D”
dock was caused solely by BWM's admitted failure to
maintain a safe berth and its failure to warn Captain Russell
of an obstruction in “D” dock berth.

Following
an initial inspection of the vessel immediately after the
incident, which did not reveal any damage, Cannon told
Captain Russell that BWM would schedule a diver to determine
what the M/Y NAMOH had struck and to investigate whether the
M/Y NAMOH's propellers had suffered any damage. On August
31, 2011, BWM engaged Edward Redfield, a commercial diver, to
inspect the M/Y NAMOH and the “D” dock berth.
Redfield inspected the M/Y NAMOH underwater and observed that
two blades of the starboard propeller were bent at the tips.
Redfield found nothing remarkable with respect to the
starboard running gear stabilizers, the hull, the port
propeller, or the port running gear of the M/Y NAMOH.
Redfield took video and still photographs of the damage to
the starboard propeller and Captain Russell viewed and
recorded the video.

Later
that day, Captain Russell engaged in a sea trial of the
vessel in Boston Harbor. During the sea trial, the M/Y NAMOH
exhibited vibration. When the vessel returned to BWM after
the sea trial, Captain Russell and Cannon discussed the
possibility of repairing the propeller at BWM by hiring a
dive team to remove the propeller in the water. BWM had no
capacity itself to take the propeller off the M/Y NAMOH in
the water in Boston and had never employed a facility
previously to take a propeller off a vessel with the size and
weight of the propeller on the M/Y NAMOH.

Ultimately,
the decision was made to continue on to New York. As Captain
Russell explained, “I thought we had a better chance of
doing [the repairs] down in New York with better facilities
and better equipped . . . personnel.”

But
repairing the vessel was not the only motivation for the trip
to New York; Captain Russell also hoped to “still try
and maintain the owner's trip. There was - you know, that
was the - that was the objective, to try and salvage some of
his trip. And we felt that at some point that the propeller
was going to have to come off and we'd have a better
chance down in New York.” Captain Russell believed
there was a guest transition planned for New York, where some
of the owner's guests would be departing and others would
be arriving.

I find
the M/Y NAMOH travelled for New York both to obtain repairs
and to allow the M/Y NAMOH's owner to continue his trip
as scheduled. I also find that it was not unreasonable for
the M/Y NAMOH to depart from Boston to seek repairs.

C.
The Journey to New York

The M/Y
NAMOH travelled from Boston to New York, with stops in
Newport, Rhode Island and Sag Harbor, New York. During the
voyage, Captain Russell and his crew monitored the engine
thrust shaft temperature and kept the M/Y NAMOH at a reduced
speed. The M/Y NAMOH was run on both engines, with the
starboard engine running at a reduced rate. On September 1,
2011, during the journey from Boston to Newport, the
starboard engine was run at no higher than 550 RPMs and the
thrust bearing temperature for the starboard engine never
exceeded 131 degrees Fahrenheit. On September 2, 2011, during
the journey from Newport to Sag Harbor, the starboard engine
was run at no higher than 550 RPMs and the thrust bearing
temperature for the starboard engine never exceeded 132
degrees Fahrenheit.

On
September 3, 2011, as the M/Y NAMOH travelled from Sag Harbor
to New York City, the thrust bearing temperatures readings
began to climb. The M/Y NAMOH's engine room visual
inspection log indicates that at approximately 1 AM, the
starboard engine was being run at 550 RPMs and the thrust
bearing temperature for the starboard engine was 107 degrees
Fahrenheit.[2] Over the next three hours, the starboard
engine stayed at 550 RPMs, but the temperature readings
increased to 122, 130, and 135 degrees Fahrenheit. At 4:15
AM, the log notes that two cups of oil were added to the
starboard thrust bearings. Then, at 5:00 AM, the starboard
engine was run at 950 RPMs and the thrust bearing temperature
for the starboard engine was 148 degrees
Fahrenheit.[3] At 6:00 AM, the starboard engine was still
being run at 950 RPMs and the thrust bearing temperature for
the starboard engine had increased to 152 degrees Fahrenheit.
At 7:00 AM, the starboard engine was run at 921 RPMs and the
thrust bearing temperature for the starboard engine was 163
degrees Fahrenheit. At 8:00 AM, the starboard engine went
back down to 550 RPMs, but the thrust bearing temperature for
the starboard engine remained at 163 degrees Fahrenheit. At
9:00 AM and 10:00 AM, the starboard engine was run at 720
RPMs and 770 RPMs respectively and the thrust bearing
temperature for the starboard engine was 155 and 156 degrees
Fahrenheit.

In his
testimony, Captain Russell recalled that the temperature of
the starboard engine thrust bearings “spiked”
during the trip from Sag Harbor to New York City; he believed
this indicated an issue with the bearings. By the time the
M/Y NAMOH reached New York City on September 3, 2011, Captain
Russell believed that the vessel's issues now extended
beyond the damage to the propeller and that the thrust
bearings needed to be inspected.[4]

In New
York City, divers from Underwater Construction Corporation
were engaged to attempt to remove the starboard propeller
from the M/Y NAMOH. Underwater Construction Corporation
provided a written estimate on September 2, 2011 for removing
the starboard propeller, transporting the propeller to its
Staten Island facility, and coordinating transport of the
propeller to the repair facility. Underwater Construction
Corporation estimated the final bill for these services would
be $2, 200.00.

The
divers from Underwater Construction Corporation were unable
to remove the propeller and no other facility could be found
in New York City to repair the M/Y NAMOH at that time. Namoh,
Ltd. has not presented documentary evidence of the actual
cost and payment for Underwater Construction
Corporation's unsuccessful attempt. Namoh, Ltd. relies
instead on the original estimate for a successful removal and
a statement by Graeme Lord, the yacht manager of the M/Y
NAMOH. As the yacht manager, Lord was not himself tasked with
reviewing and paying invoices. Angus MacKenzie and Romy
Barden, who worked with Lord at the yacht management company,
handled the billing for repairs. It appears Lord's
statement is based upon his review of the estimate. In the
absence of other evidence establishing the amount billed and
paid for the failed attempt to remove the propeller, I do not
find Lord's statement credible; thus, I find Namoh, Ltd.
has not established the charges it incurred from Underwater
Construction Corporation.

At this
point, Captain Russell decided that the M/Y NAMOH should be
hauled out for repairs, and Homan and his family disembarked
in New York. The M/Y NAMOH was then towed to Fairhaven
Shipyard in Fairhaven, Massachusetts for repairs.

I find
that Captain Russell's conduct following the incident at
BWM was not unreasonable and did not aggravate the damage to
the M/Y NAMOH caused by the allision.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;D.
The ...

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